How To Determine If Probate Is Needed

When a loved one passes away, dealing with legalities is often the last thing on our minds. However, understanding probate is crucial in these moments. Probate plays an important role in honouring the final wishes of the deceased. But how do you determine if probate is needed? This guide aims to shed light on probate and make it more approachable for those who are facing this challenging journey.

Closeup On A Book About Probate Law

Understanding Probate: A Brief Overview

Probate is the legal process of validating a will in court. It’s the first step in administering the estate of the deceased, ensuring assets are distributed as intended. But probate isn’t always straightforward. It becomes more complex when there’s no legal will, requiring adherence to intestacy laws.

The Deceased Estate

The deceased estate includes all assets and property left behind. These are held in trust until they can be rightfully transferred to the beneficiaries, as outlined in the will or as per legal requirements.

Purpose of a Grant of Probate

A grant of probate is a legal document that empowers an executor to manage the deceased’s estate. This document is crucial for the legal and transparent handling of the estate.

The Probate Process

Navigating the probate process can be intricate. It involves several key steps:

  • Establishing Eligibility: Identifying who is entitled to apply for probate is the first step. This is usually the executor named in the will.
  • Advertising Intentions: Before applying for probate, it’s important to advertise your intention to give an opportunity for objections.
  • Completing Forms: Accurately filling out the required forms is crucial for a successful probate application.
  • Handling the Will: The original will should be presented, ensuring it’s valid and properly witnessed.

Is Probate Needed for Your Situation?

Determining whether probate is needed is a decision influenced by various factors related to the deceased’s estate. It’s important to consider the nature of asset ownership and the estate’s overall composition to understand if probate is required.

Joint Tenancy

In cases of joint tenancy, where assets are co-owned, the surviving owner often receives the deceased’s share directly. This can negate the need for probate.

Size and Type of Assets

The need for probate often depends on the estate’s size and the nature of its assets. Smaller estates or those with clear beneficiary designations might not require probate.

Comparing Probate and Non-Probate Assets

Aspect Probate Assets Non-Probate Assets


Assets that are included in the will and require legal validation through probate.

Assets that bypass the probate process and transfer directly to beneficiaries.


  • Individual bank accounts
  • Solely owned real estate
  • Stocks and bonds
  • Jointly owned property
  • Life insurance policies
  • Retirement accounts

Transfer Process

Transferred to beneficiaries as per the will after the probate process.

Directly transferred to co-owners or designated beneficiaries without probate.

Legal Requirements

Requires validation of the will and legal processing.

Often have designated beneficiaries or rights of survivorship, avoiding probate.


Can be time-consuming, depending on the complexity of the estate and legal process.

Typically quicker as it avoids the probate process.


Managed by the executor as per the will's instructions.

Controlled by ownership terms or beneficiary designations independent of the will.

The Role of Executors in Probate: What You Need to Know

Executors play an important role in the probate process. Their responsibilities include collecting and safeguarding assets, paying off debts and ensuring the estate is distributed according to the will or legal requirements. The role demands attention to detail, integrity and often a significant amount of time.

In addition to these primary responsibilities, executors also have the task of navigating through various legal and administrative procedures. This includes filing the will with the probate court, notifying beneficiaries and potential creditors and preparing and filing tax returns for the estate.

Seeking Professional Guidance? Contact Spencer Lawyers

Determining if probate is needed can be a challenging task, especially during a period of mourning. With professional guidance, you may gain clarity. Our probate lawyers on the Central Coast will guide you through each step of the process. If you’re facing uncertainties about probate, reach out to us at Spencer Lawyers.